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Brown v. Saul

United States District Court, D. South Carolina

July 15, 2019

Kimberly Ann Brown, Plaintiff,
v.
Andrew M. Saul[1], Commissioner of Social Security, Defendant.

          ORDER

          RICHARD MARK GERGEL UNITED STATES DISTRICT JUDGE.

         Plaintiff has brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the final decision of the Commissioner of Social Security denying her claim for Disability Insurance Benefits ("DIB"). In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 DSC, this matter was referred to a United States Magistrate Judge for pre-trial handling. The Magistrate Judge issued a Report and Recommendation ("R & R") on June 5, 2019, recommending that the Commissioner's decision be affirmed. (Dkt. No. 28). Plaintiff filed objections to the R & R, and the Commissioner filed a response. (Dkt. No. 30, 32). As explained below, the Court reverses the decision of the Commissioner and remands the case to the agency with instructions to award benefits from January 28, 2014.

         Legal Standard

         The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made. The Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge. 28 U.S.C. § 636(b)(1).

         The role of the federal judiciary in the administrative scheme established by the Social Security Act is a limited one. The Act provides that the "findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). "Substantial evidence has been defined innumerable times as more than a scintilla, but less than preponderance." Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). This standard precludes de novo review of the factual circumstances that substitutes the Court's findings of fact for those of the Commissioner. Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971).

         Although the federal court's review role is a limited one, "it does not follow, however, that the findings of the administrative agency are to be mechanically accepted. The statutorily granted right of review contemplates more than an uncritical rubber stamping of the administrative action." Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). Further, the Commissioner's findings of fact are not binding if they were based upon the application of an improper legal standard. Coffman v. Bowen, 829 F.2d 514, 519 (4th Cir. 1987).

         The Commissioner, in passing upon an application for disability benefits, is required to undertake a five-step sequential process. At Step One, the Commissioner must determine whether the claimant is engaged in substantial gainful work. If the claimant is not engaged in substantial gainful employment, the Commissioner proceeds to Step Two, which involves a determination whether the claimant has a "severe medically determinable physical or mental impairment." If the claimant has one or more severe impairments, the Commissioner proceeds to Step Three, which involves a determination whether any impairment satisfies one of the designated list of impairments that would automatically render the claimant disabled. Where a claimant does not satisfy one of the listed disabling impairments, the Commissioner must proceed to Step Four, which involves a determination of the claimant's residual functional capacity ("RFC"). Once the RFC is determined, the Commissioner proceeds to Step Five to determine if jobs exist in significant numbers in the national economy that the claimant can perform in light of her RFC. 20 C.F.R. § 404.1520(a)(4). The claimant carries the burden of establishing the requirements of Steps One through Step Four, but at Step Five the burden shifts to the Commissioner. If the Commissioner fails to carry his burden at Step Five, the claimant is entitled to a finding of disability as a matter of law. See Pearson v. Colvin, 810 F.3d 204, 209-10 (4th Cir. 2015).

         Under the regulations of the Social Security Administration, the Commissioner is obligated to consider all medical evidence and the opinions of all medical sources, including treating and examining physicians. 20 C.F.R. § 404.1527(b). This includes the duty to "evaluate every medical opinion we receive." Id. § 404.1527(c). Under what is commonly referred to as the Treating Physician Rule, the Commissioner is required to give special consideration to the opinions of treating physicians of the claimant, based on the view that "these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations." Id. § 404.1527(c)(2). Under some circumstances, the opinions of the treating physicians are to be accorded controlling weight. Even where the opinions of the treating physicians of the claimant are not accorded controlling weight, the Commissioner is obligated to weigh those opinions in light of a broad range of factors, including the examining relationship, the treatment relationship, length of treatment, nature and extent of the treatment relationship, supportability of the opinions in the medical record, consistency, and whether the treating physician was a specialist. Id. §§ 4O4.l527(c)(1)-(5). The Commissioner is obligated to weigh the findings and opinions of treating physicians and to give "good reasons" in the written decision for the weight given to a treating source's opinions. SSR 96-2P, 61 Fed. Reg. 34490, 34492 (July 2, 1996).

         The opinions of non-examining sources and state agency medical consultants must be weighed under the same standards of the Treating Physician Rule, including the source's "specialization". .. "support" from the "relevant evidence" and other relevant factors. § 404.1527(c)(2). The Commissioner further pledges that the opinions of non-examining sources will be evaluated on "the degree to which these opinions consider all the pertinent evidence . . ." Id. § 404.1527(c)(3).[2]

         Although the final agency decision in a Social Security disability claim rests with the Commissioner, it is well settled that a disability decision by another governmental agency "cannot be ignored and must be considered." SSR 06-03p, 2006 WL 2329939 at *6. The Commissioner recognizes that another governmental agency's disability decision and the evidence used to make that decision "may provide insight into the individual's mental and physical impairments and show the [claimant's] degree of disability ..." under that agency's rules and regulations. Id. at 7. The Fourth Circuit has held that a Veterans Affairs ("VA") decision of disability is entitled to "substantial weight," which reflects "the fact that both the VA and Social Security programs serve the same governmental purpose of providing benefits to persons unable to work because of a serious disability." Bird v. Commissioner of Social Security, 699 F.3d 337, 343, 344 (4th Cir. 2012). An Administrative Law Judge ("ALJ") may give less weight to a VA disability rating only "when the record before the ALJ clearly demonstrates that such a deviation is appropriate." Id.

         Factual Background

         Plaintiff, an American veteran of the Gulf War era, has been rated disabled under the Veterans Administration (VA) disability system effective October 15, 2013, based upon a combination of severe impairments, including chronic migraine headaches, major depressive disorder, bronchial asthma, and abnormalities of the lumbar spine. Tr. 188-89, 221-25, 803. Prior to the award of VA disability benefits, Plaintiff was examined and evaluated by Dr. William Brannon, a board certified neurologist, regarding her chronic migraine headachess. Dr. Brannon described Plaintiffs pain as "distracting, attention and concentration is dulled, attitude is acrimonious during headaches." Tr. 381. He went on to state that Plaintiff was having employment difficulties because of the frequency and severity of her headaches and that "under the present circumstances this veteran is indeed unemployable." Tr. 382.

         Plaintiffs migraines became increasing frequent in late 2013, resulting in her missing work as much as one to two days per week. Tr. 384. An examining VA physician, Dr. Pamela Crawford, opined that "the veteran's major depressive disorder is more likely than not proximately due to the veteran's service connected migraine headaches, traumatic arthritis of the lumbar spine." Tr. 385. Plaintiffs migraines were initially treated with Fioricet, a highly addictive barbiturate, and later with Botox injections. Tr. 357, 449, 464.

         The addition of the Botox injections reduced the frequency and intensity of Plaintiff s migraines but the headaches nevertheless persisted. At the suggestions of her treating physicians, Plaintiff documented her migraines in a personal journal. Tr. 55. Initially, after her Botox injections began, the migraines were reduced from twenty five per month to two to three per month. However, in June 2014, Plaintiff reported that she was experiencing five migraines every two weeks. Tr. 483, 505. By December 2014, she was experiencing eight migraines a month and the Botox was not reducing the intensity of the headaches. Tr. 673. By early 2015, Plaintiffs VA record documented that the therapeutic benefits of the Botox injections were decreasing and she had seventeen episodes of migraines over the prior twelve weeks, with one cluster of headaches running for nearly two weeks. Tr. 862. In March 2015, Dr. Waheed, a treating neurologist, noted that Plaintiff was experiencing five to six migraines per month, but stated in a March 2016 office record that the intensity and frequency of the headaches had increased. Tr. 693. Dr. Eppig, a treating VA pain medicine specialist, also documented in a March 2016 note the increasing intensity and frequency of Plaintiff s migraines, then occurring fifteen times in the ...


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